Desni Detrond Williams v. State ( 2019 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-17-00495-CR
_______________________
DESNI DETROND WILLIAMS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 17-02-02374-CR
MEMORANDUM OPINION
A grand jury indicted Appellant Desni Detrond Williams (Appellant or
Williams) for manufacture or possession of a controlled substance—namely
cocaine—with intent to deliver in, on, or within 1000 feet of a school, with
allegations of three prior convictions as enhancements. See Tex. Health & Safety
Code Ann. § 481.112 (West 2017).1 Williams pleaded “not guilty” to the offense
1
We cite the current version of statutes as subsequent amendments do not
affect our disposition.
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charged and “not true” to all three enhancements. A jury found Williams guilty and
found Williams committed the offense in, on, or within a drug-free zone. The trial
court found the allegations in the enhancement paragraphs true and assessed
punishment at forty-five years of confinement. On appeal, Williams challenges the
sufficiency of the evidence to support the jury’s verdict. We affirm the judgment of
conviction as reformed.
Summary of Trial
Testimony of Sergeant Clyde Vogel
Sergeant Clyde Vogel testified that he is a patrol sergeant for the Conroe
Police Department but that he had previously worked as a detective in narcotics.
According to Vogel, one of the biggest problem areas in Conroe is the Dugan area,
where crack cocaine is the predominant drug. Vogel testified that the community
there is “tight knit” and suspicious of plain clothes officers, and that the police rely
on confidential informants and controlled buys. Vogel explained that, during a
controlled buy, the police “have the capability to watch in real time as the transaction
takes place through [] surveillance equipment.”
Sergeant Vogel testified that he had contact with a confidential informant (CI)
to purchase drugs from Williams and that, based on previous dealings with the CI,
Vogel regarded the CI as reliable. Vogel stated
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. . . [t]he informant came in, we talked to him, he was given money, a
recording device, and actually a vehicle [] that we have. We followed
him to the area of 615 Booker T. Washington, and . . . he made contact
with the defendant.
Vogel testified that he gave the CI $40 to purchase the drugs. Looking at a map of
the area, Vogel testified that the house at 615 Booker T. Washington is within 1000
feet of Booker T. Washington Junior High School.
Vogel agreed that he searched the CI prior to the controlled buy, that he had
outfitted the CI with an audio-visual recording device, that the controlled buy was
recorded, and that Vogel was able to watch the controlled buy occur in real time.
Vogel agreed that State’s Exhibit 3 was a video recording of the controlled buy, and
the recording was published to the jury. Vogel agreed that, as to viewing the
recording, the jury was in the same position that Vogel was. Vogel testified that he
followed the CI as the CI drove to 615 Booker T. Washington, although Vogel did
not go to the home. Vogel further testified that the video depicts a person sitting in
the car with the CI and that person was later identified as Williams. Vogel also
identified the defendant as the person on the video seen exiting the home at 615
Booker T. Washington. Officer Vogel also testified that he was familiar with the
neighborhood near Booker T. Washington Junior High School and that the house at
615 Booker T. Washington, where the indictment alleged the transaction occurred,
was within 1000 feet of a drug-free zone, namely a school.
3
According to Vogel, when the CI returned to the police station, the officers
gathered the recording device and drugs, searched the CI and the vehicle, weighed
and field-tested the drugs, and the drugs tested positive as cocaine and weighed less
than a gram. Vogel stated that after the police log the drugs, the drugs are secured in
an evidence locker and subsequently go to DPS to be tested.
On cross-examination, Vogel agreed that the CI had a criminal record. Vogel
also agreed that what occurred at 615 Booker T. Washington was not visible to the
naked eye or with binoculars. Vogel agreed that Defense Exhibits 1 and 2 were
photos that accurately depicted what was on the video, and he agreed that the exhibits
depicted four persons that were present, including the CI. Vogel agreed that he had
never spoken with Williams, did not know what Williams’s voice sounded like, and
could not identify who was speaking in the recording by the voices on the recording.
Vogel agreed that when he testified on direct examination he stated he watched the
video in real time but in his affidavit he stated that he watched the recorded events
“in almost real time[.]” Vogel also agreed that Williams’s driver’s license gives his
address as 12 Littlefield Lane in Willis, Texas, although on direct examination he
testified that Williams’s address was 615 Booker T. Washington. Vogel testified on
direct examination that while watching the recording, he observed Williams exiting
the house at 615 Booker T. Washington.
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Testimony of Cheryl Szkudlarek
Cheryl Szkudlarek testified that she is a forensic scientist with the Texas
Department of Public Safety Crime Lab in Houston, and that she has a bachelor’s
degree in chemistry and a master’s degree in forensic science. Szkudlarek identified
her initials and dates on State’s Exhibit 4, which she explained was submitted to the
lab on June 21, 2016 and which she opened on July 8, 2016. Szkudlarek agreed that
she performed an analysis on the substance contained in State’s Exhibit 4 and that
the substance weighed .33 grams and contains cocaine. Szkudlarek identified State’s
Exhibit 5 as the lab report she prepared, which contains the findings of the controlled
substance analysis that she performed on State’s Exhibit 4. Szkudlarek agreed that
State’s Exhibit 5 reflects that the substance the Crime Lab tested was submitted to
the Crime Lab by the Conroe Police Department and it includes a Conroe Police
Department case number and the defendant’s name. State’s Exhibit 5 was admitted
into evidence.
Testimony of Investigator John Stephenson
John Stephenson testified that he is the assistant chief of investigators for the
Montgomery County District Attorney’s Office. Stephenson testified that the
prosecution asked him to get information on a person named Edwin Cotton and that
he was able to locate some personal information about Cotton. According to
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Stephenson, the in-house computer systems of the Montgomery County Sheriff’s
Office, the Conroe Police Department, and the Texas Department of Public Safety
listed Cotton’s address as 615 Booker T. Washington in Conroe.
Further Matters at Trial
After the State rested, the defense moved for a directed verdict, which the trial
court denied. The defense did not call any witnesses and rested. (3RR140) After
closing arguments, the trial court submitted the case to the jury and the jury found
Williams guilty. The jury also found that the offense occurred in a drug-free zone.
Williams elected to have the trial court decide punishment. At the punishment
hearing, Williams pleaded “not true” to the three enhancements. The trial court
found all three enhancements true and assessed punishment at forty-five years’
confinement.2 Following trial, Williams filed a motion for new trial, arguing that the
evidence was legally insufficient for a jury to conclude beyond a reasonable doubt
that Williams knowingly possessed a controlled substance with the intent to deliver.
The motion for new trial was overruled by operation of law, and Williams appealed.
2
Prior to the punishment hearing, the trial court held a hearing on Williams’s
motion to reinstate a plea bargain, which the court denied. On appeal, Appellant does
not challenge the trial court’s denial of his motion to reinstate.
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Issue on Appeal
On appeal, Williams contends that the evidence was legally and factually
“insufficient [] for the court to conclude beyond a reasonable doubt that Defendant
knowingly possessed with intent to deliver a controlled substance.”
Applicable Law
In reviewing the legal and factual sufficiency of the evidence to determine
whether the State proved the elements of the offense beyond a reasonable doubt, we
apply the Jackson v. Virginia standard. Brooks v. State, 323 S.W.3d 893, 894-95,
912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
Under that standard, a reviewing court must consider all the evidence in the light
most favorable to the verdict and determine whether a rational justification exists for
the jury’s finding of guilt beyond a reasonable doubt. Id. at 902; see also Jackson,
443 U.S. at 319. “A jury may accept one version of the facts and reject another, and
it may reject any part of a witness’s testimony.” Febus v. State, 542 S.W.3d 568, 572
(Tex. Crim. App. 2018). As the trier of fact, the jury is the sole judge of the weight
and credibility of the witnesses’ testimony, and on appeal we must give deference to
the jury’s determinations. Brooks, 323 S.W.3d at 899, 905-06. If the record contains
conflicting inferences, we must presume the jury resolved such facts in favor of the
verdict and defer to that resolution. Id. at 899 n.13 (citing Jackson, 443 U.S. at 319).
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On appeal, we serve only to ensure the jury reached a rational verdict, and we may
not substitute our judgment for that of the fact finder. King v. State, 29 S.W.3d 556,
562 (Tex. Crim. App. 2000). In our review, we consider both direct and
circumstantial evidence and all reasonable inferences that may be drawn from the
evidence. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
The elements for the offense of possession of a controlled substance with
intent to deliver are that the defendant: (1) possessed a controlled substance; (2) with
the intent to deliver the controlled substance to another; and (3) knew that the
substance in his possession was a controlled substance. See Tex. Health & Safety
Code Ann. § 481.112(a); Nhem v. State, 129 S.W.3d 696, 699 (Tex. App.—Houston
[1st Dist.] 2004, no pet.). Possession is defined as “actual care, custody, control, or
management.” Tex. Penal Code Ann. § 1.07(a)(39) (West Supp. 2018). To prove
unlawful possession of a controlled substance, the State must prove (1) that the
accused exercised actual care, custody, control, or management over the substance
and (2) that the accused knew the substance was a controlled substance. Poindexter
v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005), overruled in part on other
grounds by Robinson v. State, 466 S.W.3d 166, 173 & n.32 (Tex. Crim. App. 2015);
De La Torre v. State, 546 S.W.3d 420, 423-24 (Tex. App.—Houston [1st Dist.]
2018, no pet.).
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In cases where a defendant does not have exclusive possession of the place
where the controlled substance is discovered, additional facts beyond mere presence
must link him to the illegal substance. Tate v. State, 500 S.W.3d 410, 413-14 (Tex.
Crim. App. 2016). The State is not required to prove exclusive possession of the
contraband as control may be jointly exercised by more than one person. McGoldrick
v. State, 682 S.W.2d 573, 578 (Tex. Crim. App. 1985). The evidence must show the
defendant's connection with the drug was ‘“more than just fortuitous[,]”’ and this is
what is referred to as the ‘“affirmative links rule.”’ Poindexter, 153 S.W.3d at 406;
De La Torre, 546 S.W.3d at 424; see also Evans v. State, 202 S.W.3d 158, 162 n.12
(Tex. Crim. App. 2006). An affirmative link can be established through any one of
or a combination of several nonexclusive factors: (1) the defendant's presence when
a search is conducted; (2) whether the contraband was in plain view; (3) the
defendant's proximity to and the accessibility of the narcotic; (4) whether the
defendant was under the influence of narcotics when arrested; (5) whether the
defendant possessed other contraband or narcotics when arrested; (6) whether the
defendant made incriminating statements when arrested; (7) whether the defendant
attempted to flee; (8) whether the defendant made furtive gestures; (9) whether there
was an odor of contraband; (10) whether other contraband or drug paraphernalia
were present; (11) whether the defendant owned or had the right to possess the place
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where the drugs were found; (12) whether the place where the drugs were found was
enclosed; (13) whether the defendant was found with a large amount of cash; and
(14) whether the conduct of the defendant indicated a consciousness of guilt. Evans,
202 S.W.3d at 162, n.12. The State need not prove all these links, and it is not the
number of factors present that is dispositive. Id. at 162; De La Torre, 546 S.W.3d at
424-25.
Circumstantial evidence may be sufficient to prove the chain-of-custody. See
Cain v. State, 501 S.W.3d 172, 175 (Tex. App.—Texarkana 2016, no pet.); Watson
v. State, 421 S.W.3d 186, 190 (Tex. App.—San Antonio 2013, pet. ref’d). “Without
evidence of tampering, most questions concerning care and custody of a substance
go to the weight attached, not the admissibility, of the evidence.” Lagrone v. State,
942 S.W.2d 602, 617 (Tex. Crim. App. 1997); see Martinez v. State, 186 S.W.3d 59,
62 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d); Gallegos v. State, 776 S.W.2d
312, 315 (Tex. App.—Houston [1st Dist.] 1989, no pet.). When the State shows the
beginning and the end of a chain of custody, any intermediate gaps go to the weight
rather than the admissibility of the evidence, particularly if the chain of custody ends
at a laboratory. See Martinez, 186 S.W.3d at 62; Gallegos, 776 S.W.2d at 315-16.
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Analysis
Williams argues that the evidence is not legally or factually sufficient to
support his conviction. According to Williams, the evidence was insufficient for the
jury to find Williams guilty beyond a reasonable doubt because: (1) the State elected
to rely solely on the testimony of Officer Vogel and the contents of the video
recording, and Officer Vogel was not physically present at the location where the
alleged drug transaction between Williams and the CI occurred; (2) the State’s
evidence fails to show beyond a reasonable doubt that Williams was present at the
alleged drug transaction, that he possessed drugs at any time, or that he “participated
in a hand to hand transaction[]”; (3) Williams was not in exclusive control of the
scene where the alleged drug transaction occurred and the State failed to present any
evidence that Williams had knowledge of and control over any contraband; and
(4) the State failed to present any testimony by Officer Vogel that the evidence
recovered by the officer from the CI was the same evidence tested by DPS on July
15, 2016, and the State failed to present credible and reliable evidence concerning
the identity and chain of custody of the evidence seized and subsequently tested. We
disagree.
Officer Vogel testified that he searched the CI on June 17, 2016 prior to the
controlled buy, that he set up the CI with recording equipment, and that he watched
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the “controlled buy” occur “in almost real time[.]” Vogel also testified that the CI
returned from the “controlled buy” with less than a gram of cocaine. The recording
was entered into evidence as State’s Exhibit 3 and was published to the jury, and
Vogel identified Williams as a person seen exiting 615 Booker T. Washington.
Vogel also agreed that the person seen in the vehicle with the CI was Williams.
Based on the record, the evidence established affirmative links from which a rational
jury could have concluded that Williams possessed the cocaine with intent to deliver
the cocaine to the CI. See Poindexter, 153 S.W.3d at 406.
Officer Vogel testified that he then weighed and field-tested the contraband
the CI obtained from Williams and the contraband tested positive for cocaine. Vogel
also testified that after he tested it he logged the contraband into the computer and
then it would have been taken to an offsite location where the evidence would have
been secured in an evidence locker. Vogel testified that after contraband is logged
into evidence, it would then be sent to DPS for testing.
Cheryl Szkudlarek testified that the lab received State’s Exhibit 4 (an
envelope with a substance in it) on June 21, 2016 and she opened the envelope on
July 8, 2016. She further testified that the envelope was marked with a Conroe Police
Department case number and Williams’s name, that her analysis determined the
substance inside the envelope was .33 grams of cocaine, and that her report which
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she prepared after testing the substance gives the Conroe Police Department case
number and names Williams as the suspect in the case. A rational jury could have
concluded that the State provided evidence of the beginning and end of the chain of
custody and that there was no evidence of tampering. See Martinez, 186 S.W.3d at
62; Gallegos, 776 S.W.2d at 315-16. Even assuming without deciding that there was
a gap in time between when Vogel logged the evidence into the computer and into
the evidence location and when it was tested by the laboratory, that would merely
go to the weight of the evidence not its admissibility. See Martinez, 186 S.W.3d at
62; Gallegos, 776 S.W.2d at 315-16.
Viewing the evidence in the light most favorable to the verdict, we conclude
that the combined and cumulative force of all the evidence would allow a rational
jury to conclude beyond a reasonable doubt that Williams had possession of the
cocaine with intent to deliver it to the CI, and the evidence was legally sufficient to
support Williams’s conviction for the charged offense. See Evans, 202 S.W.3d at
162; see also Brooks, 323 S.W.3d at 902 n.19. We overrule Williams’s issue.
Reformation of Judgment
We note that the section of the judgment entitled “Statute for Offense[]”
recites “481.112 Penal Code” whereas the jury charge tracks the language of section
481.112 of the Texas Health and Safety Code. See Tex. Health & Safety Code Ann.
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§ 481.112 (“Offense: Manufacture or Delivery of Substance in Penalty Group 1”).
This Court has the authority to reform the trial court’s judgment to correct clerical
errors. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim.
App. 1993). We therefore reform the judgment to delete the reference to “Penal
Code” and to substitute “Health & Safety Code[.]”
Having overruled Appellant’s issue, we affirm the judgment of the trial court
as reformed.
AFFIRMED AS REFORMED.
_________________________
LEANNE JOHNSON
Justice
Submitted on November 5, 2018
Opinion Delivered January 30, 2019
Do Not Publish
Before McKeithen, C.J., Kreger and Johnson, JJ.
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